Delta Canal Co. v. Frank Vincent Family Ranch LC, 2013 UT 69 (November 19, 2013)
Nov 19, 2013
The Utah Supreme Court addressed whether partial abandonment and partial forfeiture of water rights were available prior to 2002. In 2002, the Legislature amended Utah Code section 73-1-4 to clarify that partial forfeiture was an available remedy by providing “the water right or the unused portion of that water right” could be forfeited. Id. ¶ 8 (citation and internal quotation marks omitted). After a review of case law, the court concluded that it had recognized and applied the doctrine of partial forfeiture long before 2002. It then concluded that, although the pre-2002 forfeiture statute was ambiguous, it did provide for partial forfeiture. To reach this conclusion, the court turned to Utah’s common law and statutory requirement that all water be put to “beneficial use,” which requires a beneficial purpose and reasonable amount. The defendant’s position – that a water right could be maintained in full through partial use – would be inconsistent with the beneficial use requirement. Accordingly, the court held that under pre-2002 versions of the forfeiture statute, a water right may be forfeited either in whole or in part. Partial forfeiture occurs when, during the statutory period, the appropriator fails to use material amounts of available water without securing an extension of time from the state engineer.